Somerset West and Taunton Council (202006714)

REPORT

COMPLAINT 202006714

Somerset West and Taunton Council

19 July 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1. The resident has complained that:
   1. The landlord has refused to compensate them for damage to their car.

Background and summary of events

2. The resident has complained that the landlord’s grass cutting has damaged his car. They explained the landlord previously offer £400 in compensation but that the issue had continued. However following a further complaint the landlord offered £50 which the resident believes is insufficient.
3. A summary of the original complaint from the landlord explained:
   1. The resident complained in May 2019 about damage to their car.
   2. This was referred to the landlord’s insurers in July 2019.
   3. The landlord offered £400 to acknowledge the delayed handling of the complaint. The insurer declined the resident’s claim that the landlord was liable for the damage to their car.
4. This case relates to the formal complaint in September 2020 about a similar issue. The landlord’s 7 September phone note records the resident’s report of damage to the bumper caused by grass cutting on 4 September. They also reported the contractor did not wear safety equipment and did not strim away from the car as required. They offered video evidence to support the complaint.
5. The landlord visited the area and the car. The resident called the landlord several times during September. They explained they wanted the windscreen replaced and the car repainted. The landlord advised work of that nature would need to go through its insurer.
6. The landlord has explained that it was then due to request supporting information from the resident, but that this request was not sent. The resident therefore chased the complaint in October. They were unhappy at the need for further information given the landlord’s own previous visit and refused to send additional pictures.
7. The landlord sent its final (and only) response on 5 October. It explained:
   1. It would not compensate for the reported damage as it did not feel it had caused it.
   2. That the resident had referred to, but not sent, a video. The landlord invited the resident to send the video.
   3. That the resident could contact the Local Government and Social Care Ombudsman if they remained dissatisfied. This was incorrect as the case was housing related and so the correct advice would be the Housing Ombudsman Service.
8. The landlord did not explain at the time why there was only one formal response to the complaint, and no option for internal escalation. In its later email to the Housing Ombudsman, the landlord explained that given the volume and, at times, aggressive nature of contact with the resident the complaint had been passed to a more senior member of staff than would otherwise normally send the first response.
9. The resident provided their video after they received the 5 October letter. As a result the landlord sent a further response on 28 October. It explained:
   1. It accepted the contractor was strimming too close to vehicles. Also, the video did not show the contractor checking for stones prior to strimming as required. However the landlord noted this could have happened prior to the video.
   2. It accepted there was a small chip on the windscreen and bumper. However it also noted the guard on the strimmer would make a chip on the windscreen unlikely.
   3. It offered £30 towards the cost of painting the bumper chip out, and £20 towards cleaning the car.

Assessment and findings

10. The Housing Ombudsman Service’s role is to assess the reasonableness of the landlord’s response to a formal complaint. We cannot determine liability for damages where that liability is disputed. Only the courts and insurers are able to make a determination of liability. This limit of the Housing Ombudsman’s role was explained to the resident during a call on 11 May 2021.
11. The resident’s expectations have been set by the landlord’s previous offer of compensation. The resident appears to believe that the landlord should consider offering compensation for the damage as it has done so before. However the landlord has explained that this compensation was for the procedural failings in its delayed responses in 2019, and not as compensation for actual damage.
12. The final response for that complaint stated the offer of £400 ‘was made as a result of the amount of time that it has taken for your claim to be actioned and responded to.’ Therefore the landlord’s distinction between the compensation, and any payment for actual damages, is supported by the correspondence from the time.
13. Furthermore the fact that the landlord repeatedly highlighted how the claim was progressing through its insurer’s process implied that the claim for damage was being dealt with elsewhere (and therefore could not be part of the process that led to the £400 offer). Ultimately the landlord’s explanation is in line with the normal limits of a complaint procedure, and of the Housing Ombudsman as explained above. We will not determine whether a party is liable for damages. We can only assess whether a landlord has responded to a complaint in a reasonable way as part of an attempt to resolve a dispute, and whether it has followed its policies and procedures correctly.
14. It is important however to highlight that £400 was an unusually high offer solely for delays in the complaint and insurance referral process. Therefore it appears the landlord may have unintentionally confused matters by offering a figure that does appear more in the range that is associated with paying for costs or to redress significant distress and inconvenience. The period from May to July 2019 would not fall into this category.
15. In this complaint the landlord investigated the resident’s report by visiting the area and the car. It also reviewed the resident’s evidence when it was provided. This was an appropriate investigation.
16. The resident has explained the repairs they believe are required. The landlord correctly advised the resident that they would need to make a claim against its insurer if they wanted to pursue for the extensive repairs they requested as a resolution. Given the landlord did not accept liability for the damages, and given the scale of the repairs requested, it was reasonable for the landlord to refer the resident to make a claim against their insurer.
17. The landlord has identified procedural failings with the help of the resident’s information, in that the strimming was not completed in the direction required. The landlord’s offer of £50 is a reasonable offer of redress to acknowledge a failure of this type. The landlord calculated this figure by referring to the car repair outcomes the resident wanted. This was a reasonable way to try and reach a resolution, however as explained above neither the landlord’s complaint procedure nor the Housing Ombudsman can ultimately determine whether any compensation is payable for damages. Therefore the landlord has made a reasonable offer of redress in response to this complaint.
18. The Housing Ombudsman Service considers complaints that only receive one response not in keeping with our dispute resolution principles. Only allowing one response to a complaint can be unfair if this doesn’t allow sufficient opportunity for complainants to respond to the landlord’s position, particularly where this includes information that may be new to the complainant.  Having a further stage allows for a review at a more senior level to bring a wider perspective and level of expertise to a complaint.
19. The landlord did not explain to the resident why this complaint only received one response. The landlord also failed to respond at one stage, resulting in the resident having to chase the complaint. Ultimately however a response was sent within the landlord’s policy timescales.
20. It appears the complaint handling issues stemmed in part from the landlord’s difficulty handling the challenging volume and nature of the resident’s correspondence. Despite this the landlord still has an obligation to follow its policies and procedures. It has explained that it now has a policy for managing communication in cases such as this that was not in place at the time.
21. Ultimately the landlord’s response to the complaint was consistent, based on evidence, and in accordance with its obligations. Therefore the complaint handling issues are not reason enough in themselves for a finding against the landlord.

Determination (decision)

22. I can confirm in accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has made a reasonable offer of redress in response to the complaint that it has refused to compensate the resident for damage to their car.